SCOPE OF TREATY OF WAITANGI.

Dominion, Volume 6, Issue 1565, 8 October 1912, Page 7

SCOPE OF TREATY OF WAITANGI.

ITS WIDE BEARING, i ON NORTH ISLAND TITLES. , '/CfastoinaTy" Maori exclusive rights of Sting at Lake Eotonia formed the basis of a case stated for arguiiept in the Court of Appeal Inst sittings, and reserved judgment, in. the case was delivered bytho Court yesterday. ... , •Oa the Bench weite tho Chief Justice (Sir Eohert Stout),' Mr. Justice Williams, Mr. Justice Edwards, Mr. Justice Cooper, 6iid Mr. Justice Chapman.' . The plaintiff in the action was Ta'miSana Korokai, aboriginal Native, .'of Eotbrua. He proceeded. on behalf of him&lf and 'all others who are the owners, according to Native custom and otherwise, of the land covered by the waters of. Lake Eotorriii. The defendant was tho Solicitor-General (Mr. J. W. Salraond). the Crown hnd Native User. , 'At the hearing Sir. C. P. Skerrett, 'K.C., and Mr. C. B. Morison, with Mr. G. H. Fell, appeared for the- plaintiffs, while the Solicitor-General (Mr. J. W. Saimond) appeared in. person, and had Mr. H. H. Ostler, of the Crown Law Office, associated with him. -The main point involved .was embodied in the following question:— „ Th'fcre having beeh.hb cession to the ' Crown by Natives of the .Native ' rights (if any) in Lakeßotorua or the bed thereof or ;of any right of fishery or other user,. to what extent and in .what manner (if at all) does the Treaty of "W'aitangi secure to. the Na- ' tive owners .thar rights (if any) to . the lake 'or the bed thereof ? •

The Native Counter View, The Natives claimed that customary and /exclusive rights of fishing are vested in them, arid that those rights are cap-, able of ;legal recognition by the Court of Appeal or this Native :Lanu Court. The Crown denied all the claims of the Natives, . and contended that any exclusive occupation that hitherto existed liAs Ion? since been abandoned. Further, the Crown claimed the bed of the t lake as Grown land free from imy proprietary or other ripht of exclusive user on, the part of the Natives and also, claimed that,it lad at no time recognised 'any such right as vested in the . Natives, and'th'at if Native custoihnry title, at any 'time, 'extended to the bed. of;the lake, such'title has been extihguished by implied surrender,, abandonment, or cession. IJurihg.the course of argument, the Solicitor-General, in aiiswer to ii question by the Chief Justice, said that it was not disputed that the Natives had : a right to go to the Native Land Court to have the title of N&tive custohiary. lands investigated, hilt, where the Crown stepped in and declared that such lands were Crown lands, the 'Court had lib jurisdiction. He contended that Native customary . title was not' a valid legal title as against the Crown. ■ " Chief justice on the treaty of Waitangi. ;in giving judgment-yesle'rday, the. Chief Justice said that -neither party asked that all the questions framed in the ciise Bhoiild be answered. "The point in dispute between the parties is a.narrow one. The plaintiff contends that he has a statutory light to go, to the Native Land Court claiming a freehold title under the NatiVd. Lfthd. Act. The Solicitor-General contends that if he, as . Soliciter;Geheral, says the bed of .take Bbtbrua' is'tSfbwn land, that ebncludes"tTi'e matter, and.tho Native Land Court cannot proceed to make, any : inquiries as .to., whether .the land, is Native customary land. ' That is the oily, questifin ,which. this Court his at present to decide." His -Honour then proceeded to review the history of the early Settlement of New Zealand up to the signing of . the Treaty of Waitangi, regarding which he said: "Copies of the Treaty were taken to varioua parts "of both islands and the chiefs throughout New Zealand signed it, and, to the present day, the Treaty, is regarded as their llagna Charta. On May 21; 1840, tho Lieutenant-Governor issued a, proclamation proclaiming that, after tht- date of the Treaty, the full sovereignty of the North Island of New. Zealand vested-in Majesty, Queen Victoria, .and her 'heirs and successors. A further proclamation was issued on the same day pro.claiming and declaring that all the islands of New Zealand vested in'her Majesty. Since then it has been recognised that the lands in the islands not sold by the Native's belonged to the. Natives. All the old authorities are agreed that for every part of land there was a -Native owner. . . . The Governor and. Legislature of New Zealand accepted this position and numerous ordinances and Acts of Parliament have'been passed, to enable, tho Maoris to transmute their customary title into freehold. The position.. which has all along been assumed,, has been thhtthe lands are vested in the Crown, and until the Crowii _ issues a freehold title, the . customary titles cannot be recognised, but that the Crown will give to nil who prove that the land was theirs, a freehold title. The Crown has hot assumed that Inn'd could be token or kept by .the Crown from the Natives unless, the Natives ceded their rights t<J the Crown. Thous ; ands of purchases in both Islands have been made by the Crown and thousands of deeds of session are in existence. The reason why the Crown did not recognise' any title in the Jahd till a grant from the Crown had issued, is dealt with in the classio judgment of the late Mr. Justice H. S. Chapman, delivered in 1847 in the case of Beg. v. Symonds and in the judgment of. the then Chief Justice, Sir 'William Martin, who agreed with'tho judgment of Mr. Justice Chapman. After -their iudgfoents the Imperial Parliament in the New Zealand Constitution •Act recognised the Native title. "A Gross Wrong Would Have Been Perpetrated." "That the Crown in New Zealand recognised that it could hot treat the Native land—that is the land over which, the Natives had not given up their rights of cession—as Crown land in the fullest sense is plain from various things done: (1) In 1862 the first Act to provide for the ascertainment of tho Ownership of Native lands and for granting certificates of title therein, and tOi- regulating the disposal of Native lands, was passed. (2) When the Natives committed rebellion or were guilty of insurrection a special Act was passed allowing the Goveri;or-in-Council to take their/laud 3. (3) Before Native land was treated as.Crown laud open for'sale and settlement, proclamations were generally made so declarijg the land open. !"It is not necessary .to point out that if the Crown in New Zealand had not conserved tho Native rights and carried out the treaty, a gross wrong would have been perpetrated. Since the recognition of the isattvo rights, so often made, there may have been interferences by legislation with Native Jands, both before and after the ascertainment of title. Hf, however, there were such interferences, they have been based on the theory of eminent domain, There have been statutes passed providing how Native lands may bo leased, l>ul a. similar kind of interference has been witnessed in the United Kingdom in tin : cas9 of tho Iri-li Land Acts and the Scotcli crofters' statutes. _ Such interferences die: not destroy the title of Natives. Nativ* Uuds and freehold lands belonging to per sons of the white race have also beer taken un.'ler such a theory when it ap peared it was for the interest of the Stati to do so. In such cases compensation ha< been awarded. To interfere with Nativi lands merelv b?c,i jse they ore Nativi lands and without compensation, irouldo courto be such an act. of spoliation am tyranny that this Court ought not to ,ir siline it. to be possible in any civilisci community." • After a. reference to . the Native lam Yaws,. his Honour confcihncd "I am n opinion that the Native Land Act recop nif'Cb that Natives haVo a right to thei customary titles. There are. in my opin ion, oily three things that can prcvon the Native Land Court entering on n.n. in quiry as to s;- - ch customary title■''(l) A proclamation'of-the Gcvernoi under a statute suoh aa hns beon, Dioyidfi

in many Acts,, and is so provided in Section 85 of the Native Land Act, 1909. "(2) A prohibition by. tho Governor under Section 100 of the Native land Act, 1909. . , (3) Proof that the land has been ceded by tho truo owners or that a Crown grant has been issued. The Only Court That Has Jurisdiction. . "I know, of no statutory authority that the Attorney-General as Attorney-General, or the , Solicitor-General as SolicitorGeneral, has to declare that land is Crown land. Tho Attorney-General and the Solicitor-General aro both high officers of State. They are legal officers, and; they can'appear as solicitors or counsel for the Crown, but theje their "functions and powers end. .Their statement as to what is Crown property,, unless made in accord; imce ■with some statutory power, is of no avail. If in an action they put in a pica to that elTect, it would have to bo proved liko any other, pleading of a party Id the action. The Solicitor-General has failed to cite any authority that the mere statement of the legal adviser of the Crown or tho Crown's Attorney or SolicitorGeneral was to be taken as a true averment without proof., '. , "What tho customary title.to the bed of Lake Hotorua may bo must be consider; cd aiid determined by the only Court in New Zealand that has jurisdiction to deal with, Native titles—tho Native Land Court. . : "I am 'of opinion that it is hot necessary specifically to answer, tho. questions'put, but only, to say'that the plaintiff and his people have a right to .go to the Native Land Court to have their title invostigatedj and that' the .Satire Land Court can only be prevented from performing its statutory duty, first, .under tho Nativd Land Act.'or, sccond, on proof..in that Court that the lands are Crown lands, freed from the customary title of the Natives, or, third, that there is a Crown title to the bed of the lake." Set-Back for Ci'own Solicitor's Contention, • Mr. Justice ,SVilliam3 agreed with tho view taken by,tho Chief Justice. In doing so he remarked that, even if the arguments put forward in support of tho contention of the Solicitor-General were sound, it by no menus followed that,the contention .of the Solicitor-General could bo supported. "To interfere with-the proceedings of a Court of Justice authorised by statute to be taken is the assumption of an act of sovereign power," said his Honour, "and the question at once arises whether tho person,who purports to exercise'that power has authority to do so. However worthy a person the. SolicitorGeneral may be, he can hardly contend that he has been invested by his Sovereign with tho power of disregarding treaties and overriding Acts of Parliament. Any authority which the Solicitdr-Geieral has milße derived from the Governor, tho representative, of the Crown in the oolony." Mr. Justice. Edwards; Mr. Jnstico Cooper, and Mr, Justice Chapman also Tead judgments agreeing with that delivered ,by the Chief Justice. The Solicitor-General then said that there had been no desire whatever to ■burke the jurisdiction of :the Native Land Court.... At no time had' he denied the right 'bf the Natives to go to the Native. Land Court and have the title investigated. He had offered Mrl Skerrett a decree to that effect. Mr. Justice Cooper remarked that he .had taken a full note/if the position taken up by the S6licitor-General at the hearing, even to 'question and answer. The Solicitor-General--, agreed, that appellants might go to the Native Land Court, out if the Crown stated that the land in question was Crown land, the Court could go no further. The Solicitor-General.: By proclamation in the statutory manner. 1 The, Chief Justice 'remarked that that was something very different.. , ..v The .Solicitor-General maintained that the judgment given by the .Court could not iiffortl iiriy assistance in the;detcrmination of. the action. -Not a single point that had Ix'f-n .submitted had be&n imsivered by the Coiirt. The Chief Justice: The Court has i:ot answerixl, them in thd way Jrou wanted them answered. . ... ' . ..- V ... Ths Solicitor-Geiieral: I ask the Coil* t to answer these questions. . The Chief *Jiishcß? '.TCell,' ; "tlii) Judgment ■of the Court liis'been given."' Have you oiw, arrangements as to costs? ; : It appeared that no arrangemeut as to costs had been, made, and argument" on the matter will be heard next Monday.